When should physical contact constitute gross misconduct?

In the recent case of Hewston v Ofsted, the Court of Appeal upheld the Employment Appeal’s Tribunal’s decision that dismissing an Ofsted inspector for brushing water off a child was unfair.

Background

An Ofsted inspector brushed water off a pupil’s head and put his hand on the child’s shoulder who had come inside from a PE lesson in the rain. The school complained to Ofsted, stating that this behaviour was inappropriate. Following an investigation and disciplinary process, the inspector was dismissed by reason of gross misconduct and the loss of trust and confidence. The inspector appealed against this decision but was unsuccessful.

Employment Tribunal (ET)

The ET dismissed the inspector’s unfair dismissal claim on the basis that Ofsted had conducted a reasonable investigation and concluded that the inspector’s actions amounted to gross misconduct. The dismissal was held to be within the band of reasonable responses.

Employment Appeal Tribunal (EAT)

The EAT overturned the ET’s decision on the basis that the inspector had not been forewarned that one incident of physical touch (which did not raise a safeguarding issue) constituted gross misconduct. There was no disciplinary rule, policy, guidance or training given to the inspector regarding physical contact and when that would be deemed gross misconduct.

Court of Appeal (COA)

Ofsted contended in its appeal to the COA that the dismissal was justified due to the conduct itself and because the inspector’s assertion of having done nothing wrong indicated a lack of insight.

The COA agreed with the EAT that the inspector could not have foreseen that his action would be considered misconduct warranting dismissal.  It was unreasonable for Ofsted to increase the seriousness of the act because the inspector did not show insight or contrition. The COA noted that, in some cases, misconduct combined with an employee’s failure to acknowledge wrongdoing might justify dismissal due to the risk of repeated serious misconduct. However, this was not applicable in this case.

Comment

This case highlights the need for employers to have clear policies in place and to provide training and guidance to employees on what is and is not acceptable conduct. It also serves as a valuable reminder that dismissal is just one of several options for addressing cases of misconduct and should not be the immediate reaction, or the only outcome.